Court of Appeals of Texas, Twelfth District, Tyler
IN RE: RODERICK DEMETRIUS CREAG, SR., RELATOR RODERICK DEMETRIUS CREAG, SR., Relator
HON. PAM FLETCHER, Respondent
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Demetrius Creag, Sr. filed this original proceeding, in which
he complains of the trial court's failure to rule on his
motion to correct a bill of costs. We deny the petition.
February 16, 2017, Relator filed a motion to correct the bill
of costs to delete fees he alleged to be unauthorized. On
April 18, he sent a letter to the trial court and asked for a
ruling on the motion. He contends that the trial court has
yet to rule on his motion, and asks this Court to order the
trial court to rule on the motion.
is an extraordinary remedy. In re Sw. Bell Tel. Co.,
L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig.
proceeding). A writ of mandamus will issue only when the
relator has no adequate remedy by appeal and the trial court
committed a clear abuse of discretion. In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)
(orig. proceeding). The relator has the burden of
establishing both of these prerequisites. In re
Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.-Tyler 2014,
orig. proceeding.). "[M]andamus will not issue when the
law provides another plain, adequate, and complete
remedy." In re Tex. Dep't of Family &
Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006)
obtain a writ of mandamus compelling a trial court to
consider and rule on a motion, the relator must show that the
trial court (1) had a legal duty to perform a
nondiscretionary act, (2) was asked to perform the act, and
(3) failed or refused to do so. In re Molina, 94
S.W.3d 885, 886 (Tex. App.-San Antonio 2003, orig.
proceeding). Generally, a trial court has a nondiscretionary
duty to consider and rule on a motion within a reasonable
time. In re Thomas, No. 12-05-00261-CV, 2005 WL
2155244, at *1 (Tex. App.-Tyler Sept. 7, 2005, orig.
proceeding) (mem. op.). A trial court cannot be expected to
consider a motion not called to its attention. See In re
Chavez, 62 S.W.3d 225, 228 (Tex. App.-Amarillo 2001,
orig. proceeding). It is incumbent upon the relator to
establish that the motion has been called to the trial
court's attention. See id.
case, Relator's petition includes a copy of a letter
purportedly sent to the trial court in April 2017. The letter
is not file stamped or certified, and the record does not
evidence that the letter was actually received by the trial
court. See Tex. R. App. P. 52.3(k)(1)(A); see
also In re Taylor, No. 06-16-00016-CV, 2016 WL 1435386,
at *1 (Tex. App.-Texarkana Apr. 12, 2016, orig. proceeding)
(mem. op.) (relator's letters to court were not
file-marked or accompanied by other evidence showing their
receipt, and did not show "the trial court received, was
aware of, and was asked to rule on his pleadings").
Nor does Relator's petition contain evidence, such as a
docket sheet, demonstrating that the trial court has not
ruled on his motion. See Tex. R. App. P.
52.3(k)(1)(A) (requiring a relator to provide "a
certified or sworn copy of any order complained of, or any
other document showing the matter complained of");
Molina, 94 S.W.3d at 886; see also In re
Vasquez, No. 05-15-00592-CV, 2015 WL 2375504, at *1
(Tex. App.-Dallas May 18, 2015, orig. proceeding) (mem. op.)
(denying petition that failed to include a docket sheet or
other form or proof that trial court had not ruled on
motion). Thus, Relator has not shown his entitlement to
Relator has not shown that he is entitled to mandamus relief,
we deny ...